Ratner v. Kohler (Reply in Opposition To MTD)

Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 1 of 26 PageID #: 139
ERIC A. SEITZ
ATTORNEY AT LAW
A LAW CORPORATION
ERIC A. SEITZ 1412

DELLA A. BELATTI 7945
820 Mililani Street, Suite 714
Honolulu, Hawaii 96813
Telephone: (808) 533-7434
Facsimile: (808) 545-3608
LAVELY & SINGER

PROFESSIONAL CORPORATION
MARTIN D. SINGER (pro hac vice)

ANDREW B. BRETTLER (pro hac vice)
2049 Century Park East, Suite 2400
Los Angeles, California 90067
Telephone: (310) 556-3501
Facsimile: (310) 556-3615
Attorneys for Plaintiff

BRETT RATNER
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BRETT RATNER, CASE NO. 17-cv-00542-HG-KSC
Plaintiff, PLAINTIFF BRETT RATNER’S

MEMORANDUM IN OPPOSITION
vs. TO DEFENDANT MELANIE
KOHLER’S MOTION TO DISMISS
MELANIE KOHLER; and JOHN COMPLAINT FILED NOVEMBER 1,
and/or JANE DOES 1-10, 2017, AND TO STRIKE THE
COMPLAINT FILED NOVEMBER 1,
Defendants. 2017
Hearing
Date: February 8, 2018
Time: 10:30 a.m.
Judge: Helen Gillmor
Trial: March 12, 2019
Page 2
TABLE OF CONTENTS
I. INTRODUCTION .......................................................................................... 2
II. RELEVANT BACKGROUND...................................................................... 4
III. ARGUMENT.................................................................................................. 5
A. The Court Should Deny Defendant’s Motion To Dismiss Under Rule

12(b)(6)..................................................................................................5
1. Motions to dismiss are disfavored in federal courts; notice

pleading is all that is required. ................................................... 5
2. Here, the allegations in the Complaint satisfy the notice

pleading standard used in federal courts.................................... 6
a. Mr. Ratner has adequately pleaded a cause of action for

defamation. ...................................................................... 7
b. The issue of actual malice cannot be disposed of on a

motion to dismiss........................................................... 10
3. To the extent the Court is inclined to dismiss the Complaint, it

should do so without prejudice and grant Mr. Ratner leave to
amend. ...................................................................................... 11
B. The Court Should Deny Defendant’s Anti-SLAPP Motion Because

California Law Does Not Apply Here. ...............................................12
1. Hawaii’s anti-SLAPP statute does not protect Defendant from

the defamation claim at issue................................................... 15
2. Even if the California statute did apply, Mr. Ratner could

satisfy his burden under the anti-SLAPP statute. .................... 16
IV. CONCLUSION............................................................................................. 18
i
TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2009).........................................................................................6
Beauharnais v. Illinois,
343 U.S. 250 (1952)...................................................................................8, 18
Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007).........................................................................................6
Carey v. Piphus,
435 U.S. 247 (1978).........................................................................................7
Chi v. Loyola Univ. Med. Ctr.,

787 F. Supp. 2d 797 (N.D. Ill. 2011)...................................................... 13, 14
Christian Research Inst. v. Alnor,

55 Cal. Rptr. 3d 600 (Ct. App. 2007) ............................................................11
Cianci v. N.Y. Times Publ’g Co.,

639 F.2d 54 (2d Cir. 1980) ..............................................................................8
Cisneros v. Trans Union, LLC,

293 F. Supp. 2d 1167 (D. Haw. 2003).............................................................5
Clougherty v. Lonsdale,
2015 WL 2062476 (N.D. Cal. Apr. 30, 2015).................................................9
Diamond Ranch Academy, Inc. v. Filer,

117 F. Supp. 3d 1313 (D. Utah 2015) .................................................... 13, 14
Doe v. United States,

58 F.3d 494 (9th Cir. 1995) ...........................................................................12
Dowkin v. Honolulu Police Dep’t,

2010 WL 4961135 (D. Haw. Nov. 30, 2010)..................................................7
Eldorado Stone, LLC v. Renaissance Stone, Inc.,

2006 WL 4569360 (S.D. Cal. Feb. 6, 2006)....................................................9
ii
Elias v. Rolling Stone LLC,

872 F.3d 97 (2d Cir. 2017) ..............................................................................8
Erickson v. Pardus,
551 U.S. 89 (2007)................................................................................ 5, 8, 10
ESG Capital Partners, LP v. Stratos,

828 F.3d 1023 (9th Cir. 2016) .........................................................................5
Gold v. Harrison,
962 P.2d 353 (Haw. 1998)...............................................................................7
Gonsalves v. Nissan Motor Corp in Haw., Ltd.,

58 P.3d 1196 (Haw. 2002)...............................................................................7
Intercon Solutions, Inc. v. Basel Action Network,

969 F. Supp. 2d 1026 (N.D. Ill. 2013)...........................................................15
Isaac v. Daniels,
WL 2962890 (D. Haw. June 23, 2017) ...........................................................8
Jenkins v. Whittacker,
785 F.2d 720 (9th Cir. 1986) .........................................................................13
Klaxon v. Stentor Elec. Mfg. Co.,

313 U.S. 487 (1941).......................................................................................13
Kosegarten v. Dep’t of the Prosecuting Att’y,

892 F. Supp. 2d 1245 (D. Haw. 2012)...........................................................10
Lacey v. Maricopa Cnty.,

693 F.3d 896 (9th Cir. 2012) .........................................................................12
Lee v. Bankers Tr. Co.,

166 F.3d 540 (2d Cir. 1999) ..........................................................................13
Lee v. City of Los Angeles,

250 F.3d 668 (9th Cir. 2001) ...........................................................................1
Man v. Raymark Indus.,

728 F. Supp. 1461 (D. Haw. 1989)................................................................13
iii
Navellier v. Sletten,
52 P.3d 703 (Cal. 2002).................................................................................17
OSU Student All. v. Ray,

699 F.3d 1053 (9th Cir. 2012) .......................................................................12
Overstock.com, Inc. v. Gradient Analytics, Inc.,

61 Cal. Rptr. 3d 29 (Ct. App. 2002) ..............................................................17
Partington v. Bugliosi,
825 F. Supp. 906 (D. Haw. 1993)....................................................................7
Perry v. Perez-Wendt,
294 P.3d 1081 (Haw. Ct. App. 2013) ............................................................15
Peters v. Peters,
634 P.2d 586 (Haw. 1981).............................................................................13
Phillips v. KIRO-TV, Inc.,

817 F. Supp. 2d 1317 (W.D. Wash. 2011) ....................................................12
Pond v. Gen. Elec. Co.,

256 F.2d 824 (9th Cir. 1958) ...........................................................................5
Sateriale v. R.J. Reynolds Tobacco Co.,

697 F.3d 777 (9th Cir. 2012) ...........................................................................6
Smallwood v. NCSOFT,
2010 WL 727715 (D. Haw. Feb. 26, 2010)...................................................12
Soukup v. Law Offices of Herbert Hafif,

139 P.3d 30 (Cal. 2006).................................................................................17
Vess v. Ciba–Geigy Corp. USA,

317 F.3d 1097 (9th Cir. 2003) .......................................................................12
Williams v. Gorton,
529 F.2d 668 (9th Cir. 1976) ...........................................................................5
Statutes
Cal. Civ. Proc. Code § 425.16 ...................................................................................1
iv
Cal. Civ. Proc. Code § 425.16(b)(1) ........................................................................16
Cal. Civ. Proc. Code § 425.16(b)(2) ........................................................................16
Haw. Rev. Stat. § 634F-1.........................................................................................15
Rules
Fed. R. Civ. P. 12(b)(6)..........................................................................................1, 5
Fed. R. Civ. P. 8(a)(2)................................................................................................5
Other Authorities
5 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure: Civil § 1245 (3d ed. 1998) ........................5
v
PLAINTIFF BRETT RATNER’S MEMORANDUM IN OPPOSITION TO

DEFENDANT MELANIE KOHLER’S MOTION TO DISMISS AND
MOTION TO STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017
Plaintiff BRETT RATNER, by and through his undersigned attorneys,
submits this Memorandum in Opposition to Defendant MELANIE KOHLER’s
Motion To Dismiss and Motion To Strike the Complaint Filed November 1, 2017
(the “Motion”), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
and section 425.16 of the California Code of Civil Procedure. Mr. Ratner
respectfully requests that this Court deny Defendant’s motion because (i) the
Complaint contains sufficient factual matters that, if accepted as true, state a claim
to relief for defamation against Defendant that is plausible on its face; (ii)
California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, does not apply
here; and (iii) even if the California anti-SLAPP statute did apply, Mr. Ratner
could demonstrate, through admissible evidence, a probability of prevailing on his
claim for defamation per se.1
1
Mr. Ratner contends that the California anti-SLAPP statute does not apply
here for the reasons explained in section III.B, infra. It was improper for
Defendant to submit evidentiary materials in connection with a motion to dismiss.
See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (“As a general
rule, a district court may not consider any material beyond the pleadings in ruling
on a Rule 12(b)(6) motion.”) (internal quotations omitted). So as not to burden the
Court or run afoul of the Federal Rules, Mr. Ratner did not submit extrinsic
evidence to refute Defendant’s anti-SLAPP portion of the Motion. However, if the
Court is inclined to allow Defendant to proceed with a California anti-SLAPP
motion, Mr. Ratner respectfully requests permission from the Court to submit
evidentiary material in connection with a supplemental opposition thereto.
1
I. INTRODUCTION
This case is very simple. On or about October 20, 2017, Defendant publicly
accused Mr. Ratner of raping her—an allegation which he vehemently denies. As
a result, Mr. Ratner filed this lawsuit against Defendant for defamation based on
her false accusation of rape. In her Motion, Defendant tries to overly complicate
the issues by including extraneous and irrelevant information and material that is
not found within the four corners of the Complaint and arguing that Mr. Ratner
failed to allege enough specific facts to support his claim for relief. However,
under federal pleading standards, Mr. Ratner provided Defendant with more than
enough information to put her on notice of the claim. Among other things,
Mr. Ratner identified Defendant as the person who published the defamatory
statements, he provided the date on which Defendant published the statements, he
indicated the manner of publication, identified the recipients of the defamatory
statements, and alleged that he was damaged by the false accusations Defendant
leveled against him. As explained further below, there can be no real dispute that
Mr. Ratner adequately pleaded a cause of action for defamation in light of these
allegations all set forth in the Complaint.
In addition to seeking dismissal under the Federal Rules of Civil Procedure,
Defendant improperly attempts to strike the Complaint by invoking the protections
of California’s anti-SLAPP statute, notwithstanding the fact that Defendant admits
2
she is a resident of Hawaii and issued the false and defamatory statements from
Hawaii. The Court need not even consider Defendant’s purported anti-SLAPP
motion because the case is governed by Hawaii—not California—law, and
Defendant is not entitled to the protections afforded under California law. Hawaii
has a strong interest in having its own anti-SLAPP statute apply to statements
issued within Hawaii by Hawaii citizens. As Defendant acknowledges, Hawaii’s
anti-SLAPP statute does not cover the statements at issue here because they were
not made to a governmental body or in connection with a governmental
proceeding. Even if California’s broader anti-SLAPP statute applied, Mr. Ratner
easily could satisfy his burden of demonstrating a likelihood of prevailing on the
merits of his defamation claim. Mr. Ratner could and would submit evidence to
show that Defendant has changed her rape story multiple times since she initially
published it, and even took down her Facebook post when confronted about her
inconsistent statements and implausible story.
Defendant’s Motion is frivolous and unsupported both factually and legally.
Mr. Ratner respectfully requests that the Court deny the Motion in its entirety and
allow the parties to proceed with discovery.
3
II. RELEVANT BACKGROUND
Defendant is a resident of Hawaii. (Compl. [ECF No. 1] ¶ 5; Def.’s Mem.
[ECF No. 26-1] at 8, 23-24.) On or about October 20, 2017, while living in
Hawaii, “Defendant recklessly and/or intentionally posted a statement on her
Facebook page” falsely accusing Mr. Ratner of raping her “about 12 years ago.”
(Compl. ¶¶ 1, 7; see Def.’s Mem. at 24 (“Kohler now lives in Hawaii and wrote her
[Facebook post] from Hawaii”).) Specifically, as alleged in the Complaint,
Defendant wrote and published: “Brett Ratner raped me.” (Compl. ¶ 7.)
Defendant also expressly referred to Mr. Ratner as a “rapist.” (Id.)
Mr. Ratner disputes and denies Defendant’s outrageous allegation and
contends that her entire statement is “false, fabricated, and fictional.” (Id. ¶ 8.) As
alleged in his pleading, Mr. Ratner further contends that Defendant published her
statement “with knowledge of its falsity, maliciously, and with the intent to harm
[his] reputation and standing.” (Id. ¶ 9.) Mr. Ratner never consented to the
publication of Defendant’s false and defamatory statement, nor was Defendant’s
publication of the statement legally privileged. (Id. ¶ 11.) As a result of the
publication, Mr. Ratner “suffered injuries to his personal and professional
reputations” and suffered damages in the form of “emotional distress, worry,
anger, and anxiety,” both “in amounts to be proven at trial.” (Id. ¶¶ 12-13.)
4
III. ARGUMENT
A. The Court Should Deny Defendant’s Motion To Dismiss Under

Rule 12(b)(6).
1. Motions to dismiss are disfavored in federal courts; notice

pleading is all that is required.
“Ordinarily a motion to dismiss should be disfavored, and doubts should be
resolved in favor of the pleader.” Williams v. Gorton, 529 F.2d 668, 672 (9th Cir.
1976); accord Cisneros v. Trans Union, LLC, 293 F. Supp. 2d 1167, 1177-78
(D. Haw. 2003) (citing Pond v. Gen. Elec. Co., 256 F.2d 824, 826-27 (9th Cir.
1958); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure: Civil § 1245 (3d ed. 1998). The Federal Rules of Civil Procedure
authorizes the Court to dismiss a complaint only when it fails “to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) is read
in conjunction with Rule 8(a), which merely requires “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Id. 8(a)(2). Unless the
plaintiff has pleaded a claim for fraud, no particularized allegations are required.
See ESG Capital Partners, LP v. Stratos, 828 F.3d 1023, 1032 (9th Cir. 2016)
(“Non-fraud claims must survive the minimal notice pleading requirements of Rule
8(a)(2) and provide a short and plain statement to survive a motion to dismiss.”);
see also Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“Specific facts are not
5
necessary; the statement need only ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’”) (internal citations omitted).
In resolving a Rule 12(b)(6) motion, the Court must construe the complaint
in the light most favorable to the plaintiff and accept all well-pleaded factual
allegations as true. Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th
Cir. 2012). The complaint “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 677.
2. Here, the allegations in the Complaint satisfy the notice

pleading standard used in federal courts.
Contrary to Defendant’s argument that federal pleading standards now
require a plaintiff to “allege his claim with particularity” (Def.’s Mem. at 1, 11),
the Complaint is sufficiently pleaded to place Defendant on notice of the
defamation claim Mr. Ratner asserted against her. The Complaint does not fail
under Twombly, Iqbal, or their progeny because there is enough information and
allegations set forth in the Complaint to enable Defendant to respond to the claim.
There is no requirement under federal law for Mr. Ratner to anticipate Defendant’s
potential affirmative defenses, to supply her with additional facts, and/or to
6
elaborate upon those facts with legal conclusions. The only issue here is whether
Defendant recklessly and/or knowingly published a non-privileged, false and
defamatory allegation of criminal misconduct when she accused Mr. Ratner of
rape. That issue will have to be decided at trial.
a. Mr. Ratner has adequately pleaded a cause of action

for defamation.
Under Hawaii law, the four elements for a defamation claim are: (1) a false
and defamatory statement concerning another; (2) an unprivileged publication to a
third party; (3) fault amounting to at least negligence on the part of the publisher;
and (4) actionability of the statement irrespective of special harm (i.e., where, as
here, the statement is defamatory per se). Gonsalves v. Nissan Motor Corp in
Haw., Ltd., 58 P.3d 1196, 1218 (Haw. 2002); Gold v. Harrison, 962 P.2d 353, 359
(Haw. 1998). Defamation per se is a special character of defamation that consists
of four distinct categories: (a) imputation of a serious crime involving moral
turpitude; (b) possession of a loathsome disease; (c) attack on the plaintiff’s
competency in his business, trade, or profession; or (d) unchastity in women. See
Dowkin v. Honolulu Police Dep’t, No. CIV 10-00087 SOM/LE, 2010 WL
4961135, at *10 (D. Haw. Nov. 30, 2010) (citing Carey v. Piphus, 435 U.S. 247,
263 n. 18 (1978)). The first of these categories is relevant in this case. See
Partington v. Bugliosi, 825 F. Supp. 906, 915 (D. Haw. 1993) (“Under Hawaii law,
defamation per se includes statements that impute to a person the commission of a
7
crime . . . .”) (internal quotation marks omitted); see also Isaac v. Daniels, Civ.
Case No. 16-00507 DKW-RLP2017, WL 2962890, at *6 (D. Haw. June 23, 2017)
(finding that plaintiff sufficiently pleaded a cause of action for defamation per se
because defendant publicly accused plaintiff of “several sexual crimes”).
Here, Defendant’s published statements accusing Mr. Ratner of rape (see
Compl. ¶¶ 1, 7-9) are defamatory per se because they falsely impute criminal
conduct to him. See Beauharnais v. Illinois, 343 U.S. 250, 257-58 (1952) (“[I]t is
libelous falsely to charge another with being a rapist . . . .”); Elias v. Rolling Stone
LLC, 872 F.3d 97, 105 (2d Cir. 2017) (reversing district court’s order dismissing
defamation claims on the grounds that rape accusations against fraternity members
were defamatory per se and were of an concerning the plaintiffs); Cianci v. N.Y.
Times Publ’g Co., 639 F.2d 54, 60 (2d Cir. 1980) (reversing district court’s order
dismissing defamation claims on the grounds that rape allegations in article were
“reasonably susceptible of a defamatory connotation”). The allegations set forth in
the Complaint here, i.e., that Defendant accused Mr. Ratner of raping her 12 years
ago and that her allegation is false, fabricated and fictional (Compl. ¶¶ 7-8), are
sufficient to survive a motion to dismiss under the Federal Rules of Civil
Procedure. See Erickson, 551 U.S. at 93 (holding that pleading “specific facts” is
“not necessary” to survive a motion to dismiss).
8
There are several recent cases from district court within this circuit that are
instructive. For instance, in Clougherty v. Lonsdale, No. C 15–00382 WHA, 2015
WL 2062476 (N.D. Cal. Apr. 30, 2015), the district court denied a motion to
dismiss the counterclaimant’s defamation claims based on false allegations of
sexual assault finding that the claims at issue were pleaded with sufficient
particularity, such that they were plausible on their face. Id. at *2. The Clougherty
court held that the counterclaimant adequately alleged (i) who made the
defamatory statement; (ii) to whom the statement was made; (iii) when the
statement was made; and (iv) the content of the defamatory statement, i.e., that
Lonsdale committed “sexual assault.” Id. Similarly, in Eldorado Stone, LLC v.
Renaissance Stone, Inc., No. 04–CV–2562, 2006 WL 4569360 (S.D. Cal. Feb. 6,
2006) the district court there denied a motion to dismiss a libel claim on the
grounds that the pleading adequately “set forth the time period of the statement . . .
the recipients of the statement, and the substance of the allegedly libelous
statement (i.e., that [counterclaimant] was a thief).” Id. at *4 (holding “[n]othing
else is required to state a libel claim.”).
Here, Mr. Ratner pleads these requisite elements. First, he identifies
Defendant as the person who published the defamatory statement. (Compl. ¶¶ 1,
5, 7.) Next, he alleges the approximate date on which the statement was widely
published and alleges the manner of publication. (Id. ¶ 7.) Finally, Mr. Ratner
9
alleges the substance of the libelous statement (i.e., that defendant falsely accused
him of rape). (Id. ¶¶ 1, 7-8). Under the Supreme Court’s holding in Erickson and
the cases that follow, these allegations are sufficient to survive a motion to dismiss
under the Federal Rules. 551 U.S. at 93.
b. The issue of actual malice cannot be disposed of on a

motion to dismiss.
Defendant argues that the Court must dismiss the Complaint because
Mr. Ratner purportedly fails to allege that Defendant acted with actual malice
when she falsely accused him of rape. (Def.’s Mem. at 16.) Defendant is wrong.
Although Mr. Ratner specifically alleges in the first paragraph of his Complaint
that Defendant’s accusations were “deliberately false” and “malicious”
(Compl.¶¶ 1, 9), “[n]othing . . . requires that a plaintiff plead the word ‘malice’ in
the complaint. Under the dismissal standard, all that is required is that the plaintiff
plead[s] sufficient factual matter, accepted as true, to state a plausible argument
that the defendant acted with malice.” Kosegarten v. Dep’t of the Prosecuting
Att’y, 892 F. Supp. 2d 1245, 1265 (D. Haw. 2012). Mr. Ratner clearly has done
that here. (See Compl. ¶¶ 1, 7-9 (alleging that Defendant’s accusations of rape are
false and Defendant knew they were false when she published them and intended
to publish false statements about Mr. Ratner).
Even if Mr. Ratner ultimately would need additional facts to prove that
Defendant acted with constitutional malice, disposing his claim on a motion to
10
dismiss would be improper. As the Ninth Circuit has concluded, “the issue of
‘actual malice’ (or, to put it another way, intent to convey the defamatory
impression) cannot be properly disposed of by a motion to dismiss in this case,
where there has been no discovery.” See Metabolife Int’l, Inc. v. Wornick, 264
F.3d 832, 848 (9th Cir. 2001) (emphasis added) (reversing district court’s order
dismissing defamation action). “Actual malice is a subjective standard that turns
on the defendant’s state of mind; it is typically proven by evidence beyond the
defamatory publication itself.” See Flowers v. Carville, 310 F.3d 1118, 1131 (9th
Cir. 2002) (citing Metabolife, 264 F.3d at 848); see also Christian Research Inst. v.
Alnor, 55 Cal. Rptr. 3d 600, 612 (Ct. App. 2007) (concluding that discovery may
be necessary to establish actual malice in a defamation action). Accordingly,
because no discovery has yet occurred in this action, it is premature for the Court
to examine whether Defendant acted with the requisite intent when she published
the false and defamatory statements about Mr. Ratner.
3. To the extent the Court is inclined to dismiss the Complaint,

it should do so without prejudice and grant Mr. Ratner
leave to amend.
While no amendment of the Complaint should be necessary, if the Court
does require Mr. Ratner to plead additional facts pertaining to Defendant’s
malicious publication of the false and defamatory statements about him, it should
grant him leave to amend. When a court dismisses a complaint pursuant to Rule
11
12(b)(6), it should grant the plaintiff leave to amend the complaint unless the
pleading cannot be cured by new factual allegations. OSU Student All. v. Ray, 699
F.3d 1053, 1079 (9th Cir. 2012). “We have adopted a generous standard for
granting leave to amend from a dismissal for failure to state a claim, such that ‘a
district court should grant leave to amend even if no request to amend the pleading
was made, unless it determines that the pleading could not possibly be cured by the
allegation of other facts.’” Lacey v. Maricopa Cnty., 693 F.3d 896, 926 (9th Cir.
2012) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)); see also
Smallwood v. NCSOFT, No. CIV. 09–00497 ACK-BMK, 2010 WL 727715, at *11
(D. Haw. Feb. 26, 2010) (“Dismissals for failure to comply with . . . Rule 12(b)(6)
should ordinarily be without prejudice and ‘leave to amend should be granted if it
appears at all possible that the plaintiff can correct the defect.’”) (quoting Vess v.
Ciba–Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003)).
B. The Court Should Deny Defendant’s Anti-SLAPP Motion

Because California Law Does Not Apply Here.
While the Court need not even consider Defendant’s anti-SLAPP motion
because it was improperly filed as part of her 12(b)(6) motion to dismiss, see
Phillips v. KIRO-TV, Inc., 817 F. Supp. 2d 1317, 1328 (W.D. Wash. 2011)
(“Defendant [improperly] filed the anti-SLAPP motion at the same time, and in the
same document, as the Rule 12(b)(6), without designating it as a motion in the
alternative.”), if the Court does consider the anti-SLAPP portion of the Motion, it
12
should summarily deny it on the grounds that the protections of California’s anti-
SLAPP statute, upon which Defendant relies, are not available to her here.
A federal court sitting in diversity applies the forum’s choice-of-law rules.
Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 497 (1941). Hawaii has adopted
the “interest analysis” test in connection with conducting a choice-of-law analysis.
Man v. Raymark Indus., 728 F. Supp. 1461, 1468 n.9 (D. Haw. 1989) (citing
Peters v. Peters, 634 P.2d 586, 591-92 (Haw. 1981). Under this test, Hawaii law is
presumably applicable unless another state’s law would best serve the interests of
the states and parties involved. Id. (citing Jenkins v. Whittacker, 785 F.2d 720, 724
(9th Cir. 1986).
In general, to determine which state has the most significant interest in, or in
relationship to, the litigation, the Court should look chiefly to “the parties’
domiciles and the locus of the tort.” Lee v. Bankers Tr. Co., 166 F.3d 540, 545
(2d Cir. 1999). “[T]he place where the allegedly tortious speech took place and
the domicile of the speaker are central to the choice-of-law analysis on this issue.”
Chi v. Loyola Univ. Med. Ctr., 787 F. Supp. 2d 797, 803 (N.D. Ill. 2011). The
place where the injury may have occurred and the relationship of the parties have
“little, if any, relevance in this area of law.” Diamond Ranch Academy, Inc. v.
Filer, 117 F. Supp. 3d 1313, 1323 (D. Utah 2015).
13
Here, it is undisputed that Defendant is domiciled in Hawaii and that she
published her defamatory statements about Mr. Ratner while she was residing there
in October 2017. (Compl. ¶¶ 5, 7; Def.’s Mem. at 8, 23-24.) While Defendant
devotes several pages of her brief to a discussion about where Mr. Ratner resides,
and where the alleged assault 12 years ago supposedly occurred (see Def.’s
Mem. 6, 23-26), those arguments simply are not relevant to the choice-of-law
analysis. Diamond Ranch Academy, 117 F. Supp. 3d at 1323. Defendant admits,
but glosses over, the essential factors when she argues, “Ms. Kohler now lives in
Hawaii and wrote her FB Post from Hawaii.” (Def.’s Mem. at 24.) In light of this
admission, it is clear that Hawaii law applies here and that California’s anti-SLAPP
statute is not implicated, nor would Defendant, a Hawaii resident, be entitled to the
protections afforded by a California statute for defamatory statements that she
published from Hawaii.
“A state has a strong interest in having its own anti-SLAPP law applied to
the speech of its own citizens, at least when, as in this case, the speech initiated
within the state’s borders.” Chi, 787 F. Supp. 2d at 803 (emphasis added). This
approach is based on a recognition that the purpose of an anti-SLAPP law is to
encourage the exercise of free speech and that states have a strong interest in
having their own anti-SLAPP law applied to the speech of their own citizens.
Intercon Solutions, Inc. v. Basel Action Network, 969 F. Supp. 2d 1026, 1035
14
(N.D. Ill. 2013). Given that Defendant is a citizen of Hawaii, and her defamatory
publication originated from Hawaii (Def.’s Mem. at 24), Hawaii has a strong
interest in having its anti-SLAPP statute applied for purposes of analyzing whether
Defendant is immune from liability for defamation. Id.
1. Hawaii’s anti-SLAPP statute does not protect Defendant

from the defamation claim at issue.
Defendant acknowledges, as she must, that Hawaii has its own anti-SLAPP
statute, but that the Hawaii statute does not cover the defamatory statements at
issue here. (Def.’s Mem. at 20, 22.) Hawaii’s anti-SLAPP statute applies only to a
lawsuit “that is solely based on the party’s public participation before a
governmental body.” Haw. Rev. Stat. § 634F-1 (emphasis added). The Hawaii
statute defines “public participation” as “any oral or written testimony submitted or
provided to a governmental body during the course of a governmental
proceeding.” Id. (emphasis added). Because Defendant’s defamatory allegations
about Mr. Ratner originally were published on her Facebook page and not
submitted or provided to a governmental body, or made during the course of a
privileged governmental proceeding, Hawaii’s anti-SLAPP statute provides no
protection to Defendant whatsoever. Perry v. Perez-Wendt, 294 P.3d 1081, 1086
(Haw. Ct. App. 2013) (affirming circuit court’s decision that “claims in the
Complaint did not constitute a SLAPP under HRS Chapter 634F”).
15
2. Even if the California statute did apply, Mr. Ratner could

satisfy his burden under the anti-SLAPP statute.
In the event the Court finds that the California anti-SLAPP statute applies
here, Mr. Ratner respectfully reserves the right to submit evidence demonstrating
that he has a probability of prevailing on the merits of his defamation claim. See
Cal. Civ. Proc. Code § 425.16(b)(1) (a cause of action based on defendant’s right
to free speech in connection with a public issue “is subject to a special motion to
strike unless the court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim”). “In making its
determination, the court shall consider the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is based.” Id.
§ 425.16(b)(2).
Mr. Ratner will demonstrate, through admissible evidence, that Defendant’s
published statements about him are false and defamatory and resulted in damage to
his personal and professional reputations. Among other things, Defendant has
changed her story multiple times since she originally published her false rape
allegations on Facebook. Initially, she claimed that Mr. Ratner raped her “12 years
ago.” Since then, she has backtracked on that claim telling George
Stephanopoulos in a televised interview with Good Morning America that it “might
have happened later.” Good Morning America: Filmmaker Sues Sex Assault
Accuser (ABC News broadcast Nov. 8, 2017), available at
16
https://www.youtube.com/watch?v=H6Xs7umx_CU. Defendant also has made
inconsistent statements about when she first told anyone about the alleged assault.
Originally, she said she did not tell anyone about the alleged incident until she
mentioned it to her husband the day she posted about it on Facebook. However,
she now claims that she told her “best friend at the time” about the alleged assault
shortly after it supposedly occurred. Id.
Under California law, such evidence would be sufficient to defeat an anti-
SLAPP motion. The threshold for showing a “probability of success” is quite
low—the plaintiff need only establish that his claim has “minimal merit” to avoid
being stricken as a SLAPP. Soukup v. Law Offices of Herbert Hafif, 139 P.3d 30,
51 (Cal. 2006); see Navellier v. Sletten, 52 P.3d 703, 708 (Cal. 2002) (“[P]laintiff
must demonstrate only that the complaint is legally sufficient and supported by a
prima facie showing of facts sufficient to support a favorable judgment if the
evidence submitted by plaintiff is credited.”). The court does not weigh credibility
or comparative strength of the evidence. Soukup, 139 P.3d at 51. Rather, the
court considers the defendant’s evidence only to determine if it defeats plaintiff’s
showing as a matter of law. Id.; see also Overstock.com, Inc. v. Gradient
Analytics, Inc., 61 Cal. Rptr. 3d 29, 38 (Ct. App. 2002) (“We do not weigh
credibility, nor do we evaluate the weight of the evidence . . . . [W]e accept as true
all evidence favorable to the plaintiff”).
17
The plain language of Defendant’s defamatory Facebook post is clear. She
unambiguously, and without any qualification, charged Mr. Ratner with a crime.
She wrote, “Brett Ratner raped me,” and expressly referred to him as a “rapist.”
(Compl. ¶¶ 1, 7.) No extrinsic facts or explanations are required to reasonably
understand the defamatory meaning of this statement. The false statement can only
be interpreted in one way, i.e., that Mr. Ratner is a rapist. As a matter of law, the
publication is libelous per se and is not protected by the First Amendment. See
Beauharnais, 343 U.S. at 257 (“[I]t is libelous falsely to charge another with being
a rapist . . . .”) Accordingly, Defendant’s procedurally improper anti-SLAPP
motion also must be denied on substantive grounds given that Mr. Ratner can and
will demonstrate a probability of prevailing on his sole claim for defamation, if the
Court so requires.
IV. CONCLUSION
Viewing the evidence in the light most favorable to Mr. Ratner, and drawing
all justifiable inferences in his favor, the Complaint contains sufficient factual
matters that, if accepted as true, state a claim to relief for defamation against
Defendant that is plausible on its face. As a result, the Court should deny
Defendant’s motion to dismiss, or at a minimum, grant Mr. Ratner leave to amend
the Complaint to plead additional facts.
18
To the extent the Court decides Defendant’s procedurally improper anti-
SLAPP motion, it should deny that motion to strike on the grounds that California
law does not apply here, but even it did, Mr. Ratner can demonstrate a probability
of prevailing on his sole claim.
DATED: Los Angeles, California, January 22, 2018.
/s/ Andrew B. Brettler

ERIC A. SEITZ
DELLA A. BELATTI
MARTIN D. SINGER
ANDREW B. BRETTLER
Attorneys for Plaintiff

BRETT RATNER
19

Ratner v. Kohler (Reply in Opposition To MTD)

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Case 1:17-cv-00542-HG-KSC Document 34 Filed 01/22/18 Page 1 of 26 PageID #: 139

ERIC A. SEITZ 1412

LAVELY & SINGER

MARTIN D. SINGER (pro hac vice)

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

BRETT RATNER, CASE NO. 17-cv-00542-HG-KSC

Plaintiff, PLAINTIFF BRETT RATNER’S

Trial: March 12, 2019

II. RELEVANT BACKGROUND...................................................................... 4

A. The Court Should Deny Defendant’s Motion To Dismiss Under Rule

1. Motions to dismiss are disfavored in federal courts; notice

2. Here, the allegations in the Complaint satisfy the notice

a. Mr. Ratner has adequately pleaded a cause of action for

b. The issue of actual malice cannot be disposed of on a

3. To the extent the Court is inclined to dismiss the Complaint, it

B. The Court Should Deny Defendant’s Anti-SLAPP Motion Because

1. Hawaii’s anti-SLAPP statute does not protect Defendant from

2. Even if the California statute did apply, Mr. Ratner could

Bell Atl. Corp. v. Twombly,

Chi v. Loyola Univ. Med. Ctr.,

Christian Research Inst. v. Alnor,

Cianci v. N.Y. Times Publ’g Co.,

Cisneros v. Trans Union, LLC,

Diamond Ranch Academy, Inc. v. Filer,

Doe v. United States,

Dowkin v. Honolulu Police Dep’t,

Eldorado Stone, LLC v. Renaissance Stone, Inc.,

Elias v. Rolling Stone LLC,

ESG Capital Partners, LP v. Stratos,

Gonsalves v. Nissan Motor Corp in Haw., Ltd.,

Intercon Solutions, Inc. v. Basel Action Network,

Klaxon v. Stentor Elec. Mfg. Co.,

Kosegarten v. Dep’t of the Prosecuting Att’y,

Lacey v. Maricopa Cnty.,

Lee v. Bankers Tr. Co.,

Lee v. City of Los Angeles,

Man v. Raymark Indus.,

OSU Student All. v. Ray,

Overstock.com, Inc. v. Gradient Analytics, Inc.,

Phillips v. KIRO-TV, Inc.,

Pond v. Gen. Elec. Co.,

Sateriale v. R.J. Reynolds Tobacco Co.,

Soukup v. Law Offices of Herbert Hafif,

Vess v. Ciba–Geigy Corp. USA,

Cal. Civ. Proc. Code § 425.16 ...................................................................................1

Cal. Civ. Proc. Code § 425.16(b)(1) ........................................................................16

Cal. Civ. Proc. Code § 425.16(b)(2) ........................................................................16

Haw. Rev. Stat. § 634F-1.........................................................................................15

Fed. R. Civ. P. 12(b)(6)..........................................................................................1, 5

Fed. R. Civ. P. 8(a)(2)................................................................................................5

5 Charles Alan Wright & Arthur R. Miller,

PLAINTIFF BRETT RATNER’S MEMORANDUM IN OPPOSITION TO

Plaintiff BRETT RATNER, by and through his undersigned attorneys,

submits this Memorandum in Opposition to Defendant MELANIE KOHLER’s

could demonstrate, through admissible evidence, a probability of prevailing on his

claim for defamation per se.1

accused Mr. Ratner of raping her—an allegation which he vehemently denies. As

statements, he provided the date on which Defendant published the statements, he

indicated the manner of publication, identified the recipients of the defamatory

allegations all set forth in the Complaint.

In addition to seeking dismissal under the Federal Rules of Civil Procedure,